- Auction or Tender?
- Revoking Authorised Access to you Personal Details
- Landlords and Tenant on Shaky Ground
- Requirements of employers employing foreign nationals
- Do you have written Terms of Trade?
- PPSA - The importance of registration
- Business Structures
- Leaky Homes Advice
- Warning for Those Selling Properties
- Building a home
- Protecting your wealth
- How Divorce Affects Your Will
- Update on the New REINZ Plain English Agreement
- Credit Crunch
- Changes in Tax Deductibility of Legal Expenses
- Relocation of Children
- Get your rent paid
- Working Together after Divorce
Auction or Tender?
Monday, 21 November 2011 14:14
Thinking about selling your Property by Auction or by Tender?
This is a method of selling the property where the seller, either privately or through the real estate agent, invites all interested buyers to meet on one nominated day to bid to purchase the property in a public auction process. Auctions are also used by certain parties to force the sale of property where the owner is no longer able to meet their obligation. The most common is the mortgagee sale but auctions are also used to recover unpaid rates, as a consequence of the confiscation of property pursuant to the proceeds of crime legislation, and pursuant to various Court Orders.
An auction is underpinned by the Auction Terms and Conditions/Particulars and Conditions of Sale. Auction Terms are now reasonably standardised as a result of good levels of co-operation between the NZ Real Estate Institute and the NZ Law Society. Auction Terms do however still vary from agency to agency. When the sale is a forced sale situation, a significantly different set of Conditions apply. Care must be taken in these cases.
The seller should set a reserve price below which they will refuse to sell the property. Once the reserve is met the property is sold on the fall of the hammer. Good auctioneers make it clear when the reserve is met and the property is “on the market”. If the property does not reach the reserve, the property is “passed in” to enable negotiation, or the auction paused to see if the highest bidder and seller can reach a compromise on the day of the auction. The latter is the more preferred approach in the current market to enable the Real Estate profession to promote the success of the auction process.
Auctions by their nature lift the intensity of the sale process. This lift in intensity can be of value irrespective of the market. The intent of the auction is to promote competition to secure the highest price on an unconditional basis. Most often Auction Terms set the auction conduct and process out clearly. A thorough reading of these Conditions will provide a clear understanding of the auction process. Auctions should be treated with caution by both prospective sellers and buyers.
Disadvantages of Auctions
The seller will usually incur significant costs whether the sale succeeds or not. These include advertising and the provision of good supporting documentation to encourage a buyer. With auctions where the marketing lead-in time is short, this could extend to the provision of a LIM, builders report or other documentation. Legal costs will be (and should be) incurred in ensuring all detail is correct. This is not the Agent’s job.
For the buyer, similar costs can be incurred as any offer needs to be unconditional so all homework must be done in advance, including finance approval and deposit availability. Regular complaints are heard about the costs incurred by sellers and buyers when the sale does not proceed.
In an active market or with multiple interested parties, the intensity of the auction may push the price higher than its market value to the seller’s advantage. In a depressed market, no bids, or low bids, may significantly condition the price down or be discouraging. In the recent past there have been many sellers disappointed after incurring considerable costs and still no sale.
There is an old Real Estate adage that auctions are always successful because the property will either sell before the auction, at the auction or after the auction. There is some truth in this. Intensity is built over a short timeline and a good auctioneer can be invaluable to manage the sale process.Auctions can condition sellers to the current market in a short, sharp manner which may result in disappointment.
Because of the auction process, bargains can be had or higher prices obtained by sheer good luck and timing.
Forced Sales/Mortgagee Sales
In any forced sale situation a buyer should be very careful as the owner is not selling the property. There are no guarantees possession will be available without Court action, that damage to the property might occur or chattels be removed. Insurance too can be an issue. Mortgagee sales and other forced sales are often at a discount to market for these reasons.
Whether a seller or buyer, investigate the auction process, attend auctions and see how they work and select people you can work with. Undertake in advance as much preparation as you can. Appreciate that there may be significant cost in a failed attempt.
We recommend good legal advice is obtained even before committing to the process. While there is a generally accepted set of auction conditions and process, there are options to apply separate rules for separate people in some circumstances.
Tenders are similar to auctions but from the buyer’s perspective are completed in the dark. The sale process is similar in that there is an opening and closing date. Tenders have the option of providing more flexibility to enable a buyer to set their own terms for the seller to review.
With a tender however, much of the negotiation is done after the closing date. For a buyer the process is not transparent, and can in certain circumstances be manipulated and a “dutch auction” result. The lack of transparency for the buyer is offset by the flexibility in terms.
With a tender it is a lot harder to understand where the market value lies.
Sellers need to be aware buyers are often uncomfortable with the tender process.
Many of the other advantages and disadvantages with tenders are the same as with auctions.
Should you require any further advice, contact any of the following:
Graeme Elvin Partner email@example.com
Marcus Wilkins Partner firstname.lastname@example.org
Revoking Authorised Access to your Personal Details (Opt-Out)
Monday, 20 December 2010 13:35
Find out how your car licence plate can reveal your home address – and how to protect your privacy after April 2011.
“A new law will come into effect on 1 April 2011 that will better protect your personal
information on the Motor Vehicle Register. Currently, the names and addresses held on the Motor Vehicle Register are publicly available to any person who provides the registration plate number of the vehicle and pays the prescribed fee.
After 1 April names and addresses from the register will only be available for the purposes of:
· enforcement of the law
· maintenance of the security of New Zealand
· collection of charges imposed or authorised by an enactment
· the administration and development of transport law and policy
Anyone who wishes to obtain names and addresses held on the register outside of these purposes will have to make an Official Information Act request to the NZTA. When considering such a request the NZTA must weigh up the public interest in releasing the information sought against the privacy rights of the person concerned.
Alternatively any person may seek a special ‘authorisation’ from the Secretary for Transport.
These third parties authorised by the Ministry of Transport will have access to your name and address details via your vehicle registration plates.”
Go to http://www.nzta.govt.nz/vehicle/registration-licensing/information.html
Thanks to the NZTA website for the above extract.
Landlords and Tenants on Shaky Ground
Tuesday, 16 November 2010 12:00
What Makes a Property Untenable?
As the aftershocks continue to rumble through Canterbury, so too do the legal issues being unearthed, an article in the NZ Lawyer Magazine reports.
In the landlord, tenant relationship, commercial leases do vary, but lease provisions dealing with damage to premises are often substantially similar. As a rule, the issue is total destruction versus partial destruction. The key question here is what makes a property untenantable? In commercial situations, this depends on whether there has been a substantial interference to the tenant’s ability to enjoy, use, and operate the premises.
If the premises or any portion of the building is destroyed or damaged so that it is untenable, then total destruction will have occurred and the lease will immediately end. In addition, if demolition or reconstruction is required there may be a right for the landlord to terminate.
If the damage or destruction falls short of rendering the premises untenantable, then the landlord must use the insurance monies it receives to reinstate the premises as quickly as possible (provided that the tenant has not invalidated the landlord’s insurance policy and the necessary permits and consents are obtainable). If a property is being reinstated, a tenant will be entitled to a rent abatement during the reinstatement period, but leases tend to be silent on how to calculate this abatement.
As well as rent abatement, one issue that has arisen from the Christchurch earthquake is that some commercial premises are virtually undamaged but cannot be accessed due to their proximity to damaged buildings. In this case, the tenant has no right to rent abatement or to terminate the lease under the standard ADLS lease as the property is neither partially nor totally destroyed even though the tenant cannot use the property.
The matter is not really one of quiet enjoyment either, as the landlord is not preventing the tenant from accessing or using the building. Tenants in this situation would need to fall back on their own business insurance.
The standard ADLS lease (or any other standard form lease) does not deal comprehensively with these kinds of issues.
As a result, we may start seeing more tenants and landlords wanting their lawyers to draft clauses in leases that can more robustly cope with the impact on the landlord tenant relationship due to damage to commercial property caused by earthquakes and other natural disasters.
Please contact: email@example.com
For the full article in the NZ Lawyer Magazine, refer to the NZ Lawyer, Issue 148
Requirements for employers employing foreign nationals Thursday, 21 October 2010 11:14
The Immigration Act 2009 came into effect on 29 November 2010. For those of you who employ foreign nationals, there are two major implications
These are: There is a more stringent requirement for employers to check whether a person they are employing is entitled to work in New Zealand. The wording of the test in the new Act is that an employer must be able to show that they took… “reasonable precautions and exercised due diligence…”. If it is not already part of your processes then your standard employment application should include questions as to resident status. If an employee is a non resident then you need to see clear evidence of their right to work in New Zealand.
The Department of Labour has created an internet based enquiry system called “Visa View”. This enables employers to enquire about any foreign national who they are employing to see whether or not they have a work permit or other right to work. The Department is working to extend the system to include New Zealand passport holders which will give information to help employers who are concerned about asking New Zealand passport holders to prove they are citizens. It would seem that we are moving to a situation where this background check will need to be made as part of your routine pre-employment checks.
Where an employee’s work permit has expired they can continue to work for you during any notice period that you are required to give them in terms of their Employment Agreement even if this is beyond the expiry of their permit. This, of course, means that you need to have a system where your employees’ work permit expiry dates are noted so that you can give termination on notice once the permit expires.
We also bring to your attention the Immigration Advisors Licensing Act which came into force in May 2010. This requires anyone providing immigration advice to be licensed.
The definition is quite wide and you should take care to ensure that you do not give any immigration advice to employees. Even staff giving well meaning assistance could potentially be caught. (Lawyers, of course, are exempt.)
If you would like any more information concerning these matters please let contact us.
The main thing to remember is that simply relying on holding an IR330 form is no longer going to be enough and you will need to have systems and processes that show you have taken “reasonable precautions and exercised due diligence” to check whether someone you are employing is entitled to work in New Zealand.
Do you have written Terms of Trade?
Tuesday, 22 June 2010 17:24
Do you operate a business selling goods or supplying services?
Find out why written Terms of Trade are a ‘must have’.
If you operate a business selling goods or supplying services you should be using written terms of trade that are specifically tailored to your business. They may cover things like:
· Payment terms
· Deadlines and Timeframes
Don’t wait until it’s too late to find out if your terms are lacking. If you start out with the correct documentation, disputes can be easily avoided along with a great deal of anxiety and stress, not to mention costs and damage to important business relationships.
Mackenzie Elvin is experienced in working with all kinds of businesses to develop terms of trade that meet the needs for which they were intended.
If you are providing credit or want to know how to do this safely, we can work with you to integrate your terms or trade with credit terms and credit applications without difficulty.
For more information phone Marcus Wilkins on 578-5033
PPSA – The importance of registration
Wednesday, 16 June 2010 14:16
When is possession 9/10ths of the law?
Find out how you could be in danger of losing assets – and not even know it. Under the PPSA (Personal Properties Securities Act), you need to hold a perfected security interest on leased equipment before your interest in the asset is secure.
Example: Let’s say you want to lease a trailer out to your customer, James.
In addition to your standard leasing agreement you need to hold a perfected security interest in the trailer by registering a financing statement on the Personal Property Securities
Register (PPSR) either before James takes the trailer or within 10 days of him taking it. Why this is important: If James goes into receivership while he’s got your trailer thereceivers will look firstly to the register. The person with a perfected security interest over the trailer will get priority.
If James owes money to a bank, they will hold a perfected security interest over all James’ present and after acquired property, so unless you hold a perfected security interest in the trailer you could find yourself in line behind the bank trying to retrieve it, even though you own it.
Registration on the PPSR is easy and inexpensive but it must be done properly. Inaccurate or incomplete registrations can be deemed invalid.
Mackenzie Elvin can assist you with all aspects of PPSR registration including the preparation or review of your terms and conditions of trade or any leasing arrangements to ensure that your assets are fully protected.
To find out more phone Marcus Wilkins on 578-5033
Thursday, 27 May 2010 17:00
The type of business structure you choose will affect your taxation position, your
personal legal liability, the life of your business, and the availability to establish
and operate your business.
Choosing the correct business structure can be of critical importance to the success or failure of your business so it is wise to get legal advice about the benefits, capabilities and limitations of each type of structure before you make your decision.
Mackenzie Elvin is experienced in advising buyers and sellers of existing businesses,
and assisting entrepreneurs to set up new businesses.
For help and information phone Mackenzie Elvin on 578-5033
Leaky Homes Advice
Wednesday, 07 April 2010 00:00
The New Zealand government estimates nearly 90% of all apartments, monolithic homes and multi unit homes built between 1992 and 2005 will leak badly.
If you’re buying or selling you need to be aware of legal issues affecting leaky homes.
Currently the law states that if any building works requiring building consent were carried out while the seller owned the property, then the seller provides a warranty that those works were completed in accordance with the Building Code.
This includes a warranty that the house doesn’t leak, regardless of how much time has elapsed since the work was completed.
In addition, if a private certifier issued the Building Consent and the Code of Compliance then a seller is unable to pass on any of the repair costs (which are
regularly $200,000 to $300,000) to the local council.
Prior to signing an agreement for sale and purchase get in touch with us and make sure you are fully protected. Call 578 5033 and ask for Marcus Wilkins.
Warning for Those Selling Properties
Thursday, 04 March 2010 19:31
Do You Know What You’re Agreeing to in Your Contract?
When you sign the standard listing agreement with a real estate firm you are legally
A warranty that the building is weathertight and free from hidden or
An indemnity giving the real estate agent the right to recover from the owner if they are sued due to incorrect or incomplete information provided by the owner.
Make sure you fully understand what you’re agreeing to and make sure you’re
protected. Contact Marcus Wilkins on 578-5033
Building a home
Wednesday, 07 October 2009 16:46
Building a home?
Make sure you address these issues before signing the contract. There have been instances in the past where a building contractor has commenced work, obtained a progress payment and then left the site to complete other works due either to pressure from other jobs or cash-flow.
It is important that the payment schedule in your contract does not result in payments getting ahead of work completed, and that the balance of the work can be met from the outstanding contract price. If there are discrepancies here, you could find yourself in trouble should the builder go into liquidation or fail to finish your job.
There are also issues to be considered with regard to timing of the final payment and obtaining final sign off by Council.
The Building Act 2004 does not allow the occupation of a dwelling until a final Code of Compliance Certificate (CCC) has been issued however it can often take up to a month, or longer, for the local authority to issue a CCC for the property.
For that reason it is a trend in building contracts to contract out of the requirement to provide a Code Compliance Certificate (CCC) from the Local Authority.
We believe the CCC is essential because:
· Without it your ability to on-sell the property is reduced;
· In obtaining a CCC you will also have the peace of mind of having the ‘final sign
off’ on the finished building in compliance with the Building Consent;
· Failure to obtain CCC can also be an indication of the failure of the builder to pay sub-contractors which can cause difficulty in securing maintenance and warranty items.
The building contract can be altered to include clauses which:
· Secure CCC before final payment;
· Enable you to inspect the works at any reasonable time, and give such notice of any defects you discover in those inspections;
· Provide a mechanism for you to cancel the contract if for any reason the building contractor fails to get on with the job.
· Alterations to the contract must be made before you sign it.
For help with your building contract get in touch with one of our commercial team by
calling 578 5033.
Protecting your wealth
Wednesday, 07 October 2009 16:34
Protecting your wealth – recent trends may affect you.
During the 1990’s it was standard practice for people to dispose of assets into trusts for the purposes of succession planning, to protect those assets from relationship property claims (including generationally), to provide protection from creditors, and to be divested of personal assets to qualify for a rest home subsidy. It was also common for more than one of these motivations to be present.
Amendments to the Property (Relationships) Act 1976 (PRA) to extend the regime of
equal sharing between a married couple of matrimonial property to people in de facto
relationships of three years or more came into force on 1 February 2002, after several
years of public debate and controversy. This contributed to a significant rise in the
numbers of people establishing family trusts and transferring their assets into them.
At the time this was seen as the most effective and protective measure available against the impending law change, and as a protection of those assets against future de facto relationships.
However, a recent decision by the Supreme Court appears to cast doubt on the
security of property held by trusts. This may be regardless of whether the creditor
relationship existed at the time the trust was established and property transferred into it in the debtor/creditor context. With respect to relationship property, this may be
regardless of whether the transfer to the trust took place prior to the amendment to the PRA and perhaps even to any de facto relationship having commenced. What matters now is the interpretation of the intention that existed then with respect to the risk of future claims, including ones that may not have then existed.
The PRA and its effect today
The amendments to the PRA which came into effect on 1 February 2002 had the effect of extending the property sharing regime that applies to married couples to people who have been in a relationship for 3 years or more.
As a result, the PRA applies to all de facto relationships that come into existence after
the introduction of the Act and it also has the unusual ability to apply retrospectively,
meaning that the PRA applies to de facto relationships that came into existence prior to 1 February 2002 and continued to exist beyond that date.
Prior to the legislation being introduced and passed, many people who were in de facto relationships endeavoured to get their affairs in order to protect their assets. This usually meant establishing a trust and moving assets into the trust.
Even though a trust may have been established and the assets moved into the trust,
the PRA gives certain remedial powers to the court to set aside a transfer to a trust in a relationship property context if the court believes that the intention behind transferring property into the trust was to defeat the rights of any person under the Act.The courts could now be required to give an increasingly broad interpretation to the extent and application of these powers. This is contrary to the expectation that if property was disposed of to a trust at the time when a de facto partner had no statutory legal right to the property, the property would be protected from any break down of the relationship after the law was extended to de facto relationships.
This is as a result of the potential consequences of the 2009 Supreme Court decision of Regal Castings vs Lightbody. In that case, Mr Lightbody was personally liable to Regal Castings for the debts of his company through the terms of a supply arrangement entered into in 1995.
In 1998, Mr and Mrs Lightbody transferred their home into a family trust and by 2002 had forgiven the debt back from the trust. In 2003, the company went into liquidation owing a considerable sum to Regal Castings, who then sought to enforce Mr Lightbody’s personal guarantee and to set aside the transfer of the family home into the trust. Both the High Court and the Court of Appeal dismissed the application through a lack of intent on Mr Lightbody’s part.
The company was not in finanacial difficulties at the time the property was transferred into the trust, Mr Lightbody’s personal guarantee was not about to be enforced and there was no inevitability of loss at the time of the transfer. However, the Supreme Court disagreed, saying that intent to defeat did not depend on inevitability of loss.
What was important was the notion of detrimentally affecting or risking the property of others.Therefore, because Mr Lightbody must have known at the time of the disposing of his only real asset that he was significantly enhancing the risk of his creditors not recovering amounts owing to them, he had the necessary intent.
And there is now a potential application of this test to the relationship property context. The question could now become whether the person disposing of assets to a trust knew at the time that there was a future risk that a de facto partner would not share in those assets.
How do the recent trends affect me?
This recent trend has the potential to affect any person who has assets held in a trust. In the event of a relationship breakdown, the assets previously thought protected by the trust structure may be exposed. It is possible to contract out of certain provisions of the PRA through a s 21 agreement, which may help to protect these assets.
However, as many existing trusts were set up prior to the PRA being amended to include de facto relationships, a s21 agreement may not have been entered into. At
that time, there was nothing for the parties to a de facto relationship to contract out of, as the PRA did not then apply to them. Given the broad, retrospective application of the provisions of the PRA, and this subsequent Supreme Court authority that as a matter of general principle an intention to defeat future claims is capable of constituting the requisite intent to defeat, any person with assets in a trust should seek advice to review and strengthen their asset protection.
For help and information get in touch with Fiona Mackenzie on 578 5033 or email her at firstname.lastname@example.org This e-mail address is being protected from spambots.
How Divorce Affects Your Will
Tuesday, 25 August 2009 16:43
Marriage Break up can affect your will in strange ways Mr and Mrs Baker’s* marriage dissolved in 1988. They had no children. Mr Baker left everything to his wife in his Will. He never got around to changing it before he died in August 2000.
Mr Baker died and his wife inherited nothing because on the dissolution of their
marriage her entitlements under the Will automatically disappeared. This would have
been fine with Mr Baker however what happened next was nearly enough to bring him back from the dead.
The Administration Act 1969 determines how the estate is to be distributed. According
to the Act the estate was to be divided equally between Mr Baker’s parents and Mrs
Baker’s parents. However, his parents had died before him and his former father-in-law has also died before him. So Mr Baker’s former mother-in-law inherited the entire
estate. This may seem strange but divorce only has the effect of removing the former
husband or wife from the Will meaning the former husband or wife’s parents and other relatives are still entitled to benefit even if they are not named in the Will.
If you would like us to prepare a Will for you that accurately reflects your intentions or if you have been meaning to get around to updating your Will but haven’t, contact our Trust and Wills specialist for more information.
*not their real names
Update on the New REINZ Plain English Agreement for Buying and Selling Real Estate
Saturday, 15 August 2009 15:00
Update on the New “Plain English” Agreement for Buying and Selling Real Estate
As a result of the rejection of the new form by some lawyers, REINZ is in the process of considering where any changes or clarification of clauses may be required.
In the meantime the Auckland District Law Society standard form (which we
recommend) is the form that is currently in use.
For help and more information get in touch with one of our commercial team by calling 578 5033.
Wednesday, 17 June 2009 16:56
Landlords! Survive the Credit Crunch
One of our clients owns a small commercial building which he had leased to a small business. His tenants vacated the premises before the term expired without paying the rent, and the guarantor was insolvent.
Our client wanted to know if there was any way he could recover the rent and betterprotect himself with future tenants. Before entering into a lease it is crucial to investigate the tenant’s credit worthiness.
If there is a guarantee these type of investigations should extend to the guarantor and include:
· credit checks
· statements of financial position
· employer verification
It’s a good idea to require that rent be paid a month in advance, and to be follow up as soon as a payment is missed so the tenant doesn’t fall more than a month behind.
There are a few ways to secure payment ‘up front’ such as rent deposits, bank guarantees and rental bonds. Bank’s guarantees are sometimes used in commercial leasing arrangements. They will pay the landlord if the tenant misses a payment. Bank guarantees are usually for a limited time and amount.
The most common form of security for a landlord where the tenant is not an individual (or is an individual with little business experience or few assets) is to obtain a personal guarantee. This enables the landlord to make demand on the tenant’s guarantor if the lease is breached.
In order for this to be legally binding two things must happen
· The guarantor must sign the Agreement to Lease
· There must not be any material change to the terms of the lease without the guarantor’s consent A guarantor will be bound by an Assignment of Lease by the tenant, even when they’re not notified of the assignment. It’s not usual for the guarantor’s liability to extend into the ‘holding over period’ where the tenant remains in possession once the term of the lease has expired.
Where there is a breach of the lease such as non payment of rental it may be preferable to keep the lease on foot, only canceling the lease when another tenant can be found. If the lease is cancelled, rights of action for rental to the end of the term can be lost and guarantors released from their obligations.
Landlords have no obligation to mitigate their losses in circumstances like these though it’s generally for practical reasons, not legal ones. Landlords usually prefer to take a chance on a new tenant than have an empty building.
A claim can be brought by the landlord for money owed and default interest (if payable) against the current tenant, their guarantors and potentially all previous tenants and guarantors. What might happen though is that the landlord might encourage an insolvent tenant to find an assignee or sub-tenant. The landlord may then find a new tenant for the premises and negotiate a settlement agreement with the old one where they vacate the premises on agreed terms.
There is unfortunately no happy ending for our client. He had entered into an Agreement to Lease with the tenant before seeking our advice or undertaking any checks on them.
The guarantor had not signed the Agreement to Lease. He did eventually sign the Deed of Lease but on investigation he had no assets in his own name. The only avenue left open was for our landlord client to bankrupt him. That was small comfort and not something our client wanted to pursue.
The building has now been re-let to someone at a lower rental after advice from us and proper checking on the tenant.
Avoid this sort of scenario with expert advice from one of our commercial team. Call 578 5033
Changes in Tax Deductibility of Legal Expenses
Wednesday, 13 May 2009 13:43
As of April 1 2009 businesses will be able to claim a full tax deduction for legal
expenses up to $10,000.
With effect from 1 April 2009 businesses can generally claim a full tax deduction for
legal expenses up to $10,000 in the year those expenses are incurred. For expenses over $10,000 the usual (old) tax rules apply and legal expenses need to be split between those that are fully deductible and those that need to be depreciated because they relate to a capital purchase.
Example: A business purchases capital equipment with bank finance. The total legal
expenses are $4,000 for the financing of the purchase and $4,000 for the legal work on the purchase. The full $8,000 will be deductible in this case. Under the usual (old) tax rules only $4,000 for financing would be deductible in the year incurred with the
balance depreciated as part of the cost of purchase of the capital equipment.
The amount of $10,000 excludes GST if the business is GST registered;
The deduction is only for businesses where the total legal expenses in one year are
$10,000 or less; The relevant legislation is Section 4 of the Taxation (Business Tax Measures) Act 2009 which inserted a new Section DB 62 into the Income Tax Act 2007.
Relocation of Children
Tuesday, 12 May 2009 12:45
Fiona Mackenzie, our family law partner, has attained a masters in law. Her A grade dissertation is about re-location of children.
RELOCATION OF CHILDREN – Summary of dissertation by Fiona Mackenzie
Relocation of children is an area of major dispute. The Court of Appeal in D v S (CA
No1)  NZFLR 116 established there could be not a priority assumptions with respect to any of the relevant factors in an assessment of a child’s bests interests. It also said in D v S (CA No 2)  NZFLR 81 that the Family Court had been wrong to rely on W v C  NZFLR 1057. In its view, Judge Inglis QC had incorrectly sought to create joint guardianship rights as the starting point for a best interests assessment, with shared care between separated parents being the most desirable way of discharging joint guardianship responsibilities.
The High Court has also on a number of occasions confirmed that the passage of the Care of Children Act 2004 has not changed the law established by the Court of Appeal in D v S. However, recent trends within the Family Court suggest that there have been changes in application and practice. These developments are contrary to the law established by D v S.
The dissertation seeks to outline these trends, backgrounding the history and development of the English and Australian positions, addressing New Zealand’s divergence from the English position arising out of its rejection of the English Court of Appeal’s decision in Payne v Payne  2 WLR 1826, discussing the effect of gender and gender politics and exploring the changing attitudes to relocation of a small number of practitioners and judges, particularly since the passage of the Care of Children Act 2004. The latter was achieved by means of a survey of necessarily limited scope.
The dissertation concludes that New Zealand has reached the position where, in
rejecting the factor of the mother’s health and happiness as having greatest weight, it has now arguably rejected that factor as having any weight at all. At the same time, it has also elevated the factor of the child’s relationship with the non-relocating parent a shaving greater weight than any other factor.
The result is that a mirror image of the Payne approach has developed in New Zealand, contrary to the formal statement of the law contained in D v S. How this position might be addressed is also explored, discussing the increasingly important corrective function of the appellate court and finally, the need for legislative intervention.
Get your rent paid
Tuesday, 17 February 2009 19:57
“Landlords, Get Your Rent Paid on Time!” by Mackenzie Elvin from Associated Realty
Follow the link below:
Working Together after Divorce
Tuesday, 17 February 2009 19:49
“Working Together after Divorce – The Mediated Road to Success”
by Rick Larsen
Follow the link below: